Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : The Magistrate Can Pass Order For Further Investigation On The Final Report.
JUDGEMENT TITLE : Gopi Singh Vs. State Of U.P. & Another On 21/11/2008 By Allahabad High Court
CASE NO : CRIMINAL REVISION NO. 1 OF 2004
CORAM : Hon'ble Vijay Kumar Verma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.
RESERVED


Criminal Revision No. 1 Of 2004


Gopi Singh................. Revisionist

Versus

1.State Of U.P. ............. } Opposite Parties
2.Babu Khan ............. }



Hon'ble Vijay Kumar Verma, J.

"Whether The Magistrate Is Empowered To Pass The Order For Re-investigation Or Further Investigation On The Final Report Submitted By The Police?" Is The Main Question That Falls For Consideration In This Revision, Which Has Been Preferred Against The Judgement And Order Dated 20.09.2003 Passed By The Addl. Sessions Judge, Court No. 3, Aligarh In Criminal Revision No. 102 Of 2003 (Babu Khan Vs. State Of U.P. And Another).
2. By The Impugned Judgement, The Learned Lower Revisional Court Has Allowed The Revision And Order Dated 06.02.2003 Passed By The Addl. Chief Judicial Magistrate, Court No. 8, Aligarh On The Final Report Submitted By The Police Of P.S. Gonda, District Aligarh In Case Crime No. 196 Of 2001 Under Section 420 IPC Has Been Set-aside. The Magistrate Concerned Vide Order Dated 06.02.2003 Has Passed The Order For Re-investigation Under The Provisions Of Section 173(8) Of The Code Of Criminal Procedure (in Short, 'the Cr.P.C.') After Rejecting The Final Report.
3. Shorn Of Unnecessary Details, The Facts Emerging From The Record Leading To The Filing Of This Revision, In Brief, Are That An FIR Was Lodged By The Revisionist Gopi Singh At P.S. Gonda (Aligarh), Where A Case Under Section 420 I.P.C. Was Registered At Crime No. 196 Of 2001 Against Babu Khan (opposite Party No. 2 Herein). After Investigation, The Police Submitted Final Report On 15.12.2001, Which Was Rejected By The Addl. Chief Judicial Magistrate Court No. 8, Aligarh Vide Order Dated 06.02.2003 And Order For Re-investigation Under The Provisions Of Section 173(8) Cr.P.C. Was Passed. That Order Was Challenged By The Accused By Means Of Criminal Revision No. 102 Of 2003, Which Was Allowed By Addl. Sessions Judge, Court No. 3, Aligarh Vide Impugned Judgement, Whereby The Order Dated 06.02.2003 Passed By The Magistrate Has Been Set Aside. Hence, This Revision.
4. I Have Heard Arguments Of Sri Hemendra Pratap Singh, Learned Counsel For The Complainant/Revisionist, Sri Nasiruzzaman Advocate, Appearing For The Accused/ Opposite Party No. 2 And Learned AGA For The State.
5. It Was Submitted By The Learned Counsel For The Revisionist That View Of The Learned Lower Revisional Court That On Final Report, Order For Re-investigation Or Further Investigation Can Not Be Made Is Wholly Erroneous And Hence The Impugned Judgement Being Illegal Should Be Set-aside And The Matter Be Sent Back To The Police Station Concerned For Further Investigation. The Contention Of The Learned Counsel Of The Revisionist Was That The Magistrate Is Fully Empowered Under Section 156(3) Cr.P.C. To Pass The Order For Re-investigation Or Further Investigation On The Final Report And The Police Has Unfettered Power Of Further Investigation Under Section 173(8) Cr.P.C.
6. On The Contrary, It Was Contended By The Learned Counsel For The Opposite Party No. 2 That Order For Further Investigation Can Be Made Only If The Chargesheet Is Submitted By The Police And In The Case Of A Final Report, The Magistrate Is Not Empowered To Pass The Order Even For Further Investigation. It Was Also Contended By The Learned Counsel For The Opposite Party No. 2 That Re-investigation Can Not Be Ordered In Any Case And Hence, No Illegality Has Been Committed By The Learned Lower Revisional Court In Setting Aside The Order Dated 06.02.2003, As The Learned Magistrate Had Passed Wholly Illegal Order About Re-investigation After Rejecting The Final Report.
7. Having Given My Thoughtful Consideration To The Rival Submissions Made By The Parties Counsel, I Agree With The Contention Of The Learned Counsel For The Opposite Party No. 2 That Order For Re-investigation Could Not Be Passed After Rejecting The Final Report, But I Find No Force In His Contention That Order For Further Investigation Also Can Not Be Made After Rejecting The Final Report.
8. Regarding The Right Of Re-investigation On Submission Of The Report Under Section 173(2) Cr.P.C., Which Includes The 'chargesheet' And 'final Report' Both, It Is Held By The Hon'ble Apex Court In The Case Of Ramchandran Vs. R. Udhayakumar And Others 2008(62) ACC 351 That Police Has No Right Of Fresh Investigation Or Re-investigation And Instead Of Fresh Investigation, There Can Be Further Investigation, If Required. Reference Has Been Made To The Case Of K. Chandrasekhar V. State Of Kerala And Others, 1998 (37) ACC 136 (SC), In Para 7 Of The Report At Page 352 In Which, It Was Inter Alia, Observed As Follows:-
" 24. The Dictionary Meaning Of "further" (when Used As An Adjective) Is "additional; More; Supplemental;. "Further" Investigation Therefore Is The Continuation Of The Earlier Investigation And Not A Fresh Investigation Or Reinvestigation To Be Started Ab Initio Wiping Out The Earlier Investigation Altogether. In Drawing This Conclusion We Have Also Drawn Inspiration From The Fact That Sub-section (8) Clearly Envisages That On Completion Of Further Investigation The Investigating Agency Has To Forward To The Magistrate A "further" Report Or Reports - And Not Fresh Report Or Reports - Regarding "further" Evidence Obtained During Such Investigation."

9. In View Of The Settled Position Of Law As Indicated Above, The Direction Of The Learned Magistrate In Present Case For Reinvestigation Is Clearly Indefensible. However, Instead Of Setting Aside The Order Dated 06.02.2003, The Lower Revisional Court Ought To Have Modified That Order Issuing Direction For Further Investigation Of Case Crime No 196 Of 2001 In Place Of Re-investigation.
10. So Far As The Question Of The Power Of The Magistrate To Pass The Order For Further Investigation On The Final Report Is Concerned, It Is Now A Well Settled Law By A Catena Of Decisions That The Magistrate Is Fully Empowered Under Section 156(3) Cr.P.C. To Pass The Order For Further Investigation On The Final Report And The Magistrate Is Not Bound To Accept The Final Report. This Matter Has Been Considered By The Hon'ble Apex Court In A Number Of Decisions And It Is Repeatedly Held That The Magistrate Is Empowered To Pass The Order For Further Investigation On The Final Report. In The Case Of Abhinandan Jha And Another Vs. Dinesh Mishra 1967(4) ACC 306 S.C., The Hon'ble Apex Court While Considering The Provisions Of Section 156(3), 169, 173 And 190 Cr.P.C., Has Held That There Is No Obligation On The Magistrate To Accept The Report Submitted By The Police Under Section 173(2) Cr.P.C., If He Does Not Agree With The Opinion Formed By The Police. In The Case Of Gangadhar Janardan Mhatre Vs. State Of Maharashtra And Others 2004(50) ACC 650, The Hon'ble Apex Court Had An Occasion To Consider This Matter Again. After Making Reference Of The Case Of Abhinandan Jha(supra), The Following Observations Have Been Made In Para 9 Of The Report At Page 654:-
9. "When A Report Forwarded By The Police To The Magistrate Under Section 173(2)(i) Is Placed Before Him Several Situations Arise. The Report May Conclude That An Offence Appears To Have Been Committed By A Particular Person Or Persons And In Such A Case, The Magistrate May Either (1) Accept The Report And Take Cognizance Of The Offence And Issue Precess, Or (2) May Disagree With The Report And Drop The Proceeding, Or (3) May Direct Further Investigation Under Section 156(3) And Require The Police To Make A Further Report. The Report May On The Other Hand State That According To The Police, No Offence Appears To Have Been Committed. When Such A Report Is Placed Before The Magistrate He Has Again Option Of Adopting One Of The Three Courses Open I.e., (1) He May Accept The Report And Drop The Proceeding; Or (2) He May Disagree With The Report And Take The View That There Is Sufficient Ground For Further Proceeding, Take Cognizance Of The Offence And Issue Process; Or (3) He May Direct Further Investigation To Be Made By The Police Under Section 156(3)."

11. The Division Bench Of This Court Has Also Considered This Matter In The Case Of Pakahndo And Others Vs. State Of U.P. And Another 2001 (43) ACC 1096. Making Reference Of Certain Decisions Of The Hon'ble Apex Court, The Division Bench Has Held As Under In Para 15 Of The Report At Page 1100:-
"15. From The Aforesaid Decisions, It Is Thus Clear That Where The Magistrate Receives Final Report, The Following Four Courses Are Open To Him And He May Adopt Any One Of Them As The Facts And Circumstances Of The Case May Require:

(i) He May Agreeing With The Conclusions Arrived At By The Police, Accept The Report And Drop The Proceedings. But Before So Doing, He Shall Give An Opportunity Of Hearing To The Complainant; Or

(ii) He May Take Cognizance Under Section 190(1)(b) And Issue Process Straightway To The Accused Without Being Bound By The Conclusions Of The Investigating Agency, Where He Is Satisfied That Upon The Facts Discovered Or Unearthed By The Police, There Is Sufficient Ground To Proceed; Or

(iii) He May Order Further Investigation, If He Is Satisfied That The Investigation Was Made In A Perfunctory Manner; Or

(iv) He May, Without Issuing Process Or Dropping The Proceedings Decide To Take Cognizance Under Section 190 (1)(a), Upon The Original Complaint Or Protest Petition Treating The Same As Complaint And Proceed To Act Under Section 200 And 202, Cr.P.C. And Thereafter Decide Whether Complaint Should Be Dismissed Or Process Should Be Issued.


12. Recently In The Case Of Sakiri Vasu Vs. State Of U.P. And Others 2008 (60) ACC 689, The Hon'ble Apex Court Has Held In Para 16 Of The Report At Page 691 That "the Power In The Magistrate To Order Further Investigation Under Section 156(3) Is An Independent Power And Does Not Affect The Power Of The Investigating Officer To Further Investigate The Case Even After Submission Of His Report Vide Section 173(8). Hence, The Magistrate Can Order Re-opening Of The Investigation Even After The Police Submits The Final Report."
13. Having Regard To The Law Laid Down In The Cases Referred To Above, There Remains No Room For Doubt That The Magistrate Is Fully Empowered Under Section 156(3) Cr.P.C. To Pass The Order For Further Investigation On The Final Report. The View Of The Learned Lower Revisional Court That Order For Further Investigation Can Be Made Only If The Chargesheet Is Submitted By The Police Is Apparently Erroneous. Therefore, The Impugned Judgement Is To Be Set-aside, So That Further Investigation Of Case Crime No 196 Of 2001 May Be Made.
14. Consequently, The Revision Is Allowed. Impugned Judgement And Order Are Set-aside. The Order Dated 06.02.2003 Passed By The Addl. Chief Judicial Magistrate, Court No. 8, Aligarh In Crl. Misc. Case No. 260/12 Of 2002 (Gopi Singh Vs. Babu Khan) Is Modified To The Extent That Instead Of Re-investigation Of Case Crime No. 196 Of 2001 Under Section 420 I.P.C. Of P.S. Gonda (Aligarh), Further Investigation Be Carried Out.

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